Question: My kids’ father has never been a part of their lives. In my Will, can I name a guardian for my kids, other than their father?
Answer: Nominating a guardian to raise your minor children is a difficult decision for any parent. The prospect of a deadbeat Dad, gaining custody, will keep you up at nights. Can you nominate a guardian to step ahead of your children’s father?…not necessarily.
Courts approach this type of scenario favoring a Parent’s right to custody, over a nominated Guardian’s right to Guardianship. This inclination does not apply in all situations.
If circumstances support Guardianship as a more favorable alternative to parental custody, your ex may be left out. Such factors include: history of the Father’s abuse or substance abuse, and criminal record. Less substantial factors include continuity of the child’s upbringing, and the child’s own input.
A Judge will look to maintain a child’s status quo, as much as possible. In this hypothetical scenario, your kids will lose you as their primary parent. This change is devastating. A thoughtful Judge would support keeping them in their home and school, for consistency. When they reach a certain age, their own opinions will be solicited and considered.
I recommend describing the reasons for your concern in your Will, and naming the Guardian you desire. Though not a guarantee, a Will containing this language is a must for single parents like you.